NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-32 24

- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. SHANNON A. MCGUIGAN, Defendant-Appellant.

________________________

Argued March 6, 2024

– Decided April 9, 2024 Before Judges Accurso, Vernoia, and Gummer. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 19

- 07 -0888 and 20- 03

- 0306. Samuel Clark Carrigan, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Samuel Clark Carrigan, of counsel and on the briefs). Nicole Handy, Assistant Prosecutor, argued the caus e for respondent (La Chia L yn Bradshaw, Burlington County Prosecutor, attorney; Nicole Handy, of couns el and on the brief). The opinion of the court was delivered by GUMMER, J.A.D. APPROVED FOR PUBLICATION April 9, 2024 APPELLATE DIVISIONA- 3224

- 21 2 After twice viewing a video recording of a police interrogation of defendant Shannon McGuigan and after the trial cour t barred in part the testimony of her expert witness, a jury convicted h er of having committed a first-degree drug-induced death crime, in violation of N.J.S.A. 2C:35-9(a), along with other drug-related crimes. Defendant ap peals from those convictions, arguing, among other things, that the interrogating detective had engaged in deceptive tactics that rendered her Mira nda 1 waiver invalid and the trial court erred in admitting her statement to pol ice and in limiting the testimony of her expert. Because the trial court d id not conduct evidentiary hearings pursuant to N.J.R.E. 104, its admission of defendant's statement was plain error and its limitation of the testimony of her expert witness was an abuse of discretion. Accordingly, we remand the ca se and direct the trial court to conduct evidentiary hearings regarding the volun tariness of defendant's statement, the qualifications of her expert witness , and the admissibility of his opinions. As we explain in this opinion, whether defendant's convictions are affirmed or whether she is entitled to a new trial depends on the outcomes of those hearings.

1 Miranda v. Arizona, 384 U.S. 436 (1966).A- 3224

- 21 3 I. After she woke up on the morning of May 30, 2017, Sheryl Maser went to her daughter Emily's bedroom and found Emily dea d. 2 The county medical examiner concluded Emily had died as the result of fentanyl and heroin toxicity. That fatal overdose was not Emily's firs t experience with heroin. According to data later extracted from one of Emil y's cell phones, Emily had sent a text message to a contact labeled "Shann on J.R." on May 12, 2017, to purchase twenty-dollars-worth of narcotics. On May 14, 2017, Emily again texted "Shannon J.R." to arrange a purchase of thir ty-dollars-worth of heroin. Defendant testified at trial that J.R. was her frie nd and drug dealer. She assisted him in his drug-dealing efforts by giving him rides; she received drugs in return. Defendant first met Emily about three m onths before her death when she drove J.R. to meet Emily so he could sell her d rugs. Defendant was involved in selling heroin to Emily approximately t hree times. J.R. was jailed sometime in May 2017. Defendant admitted at trial she had sold and used the heroin he had left behind. On May 19, 2017, Sheryl called 9-1-1 and reported s he had found drug paraphernalia in the house she shared with Emily an d that Emily was home and

2 Because of their shared last names, we use their fi rst names when referencing Sheryl and Emily for clarity and ease o f reading. We intend no disrespect in doing so.A- 3224

- 21 4 had active arrest warrants. After Sheryl allowed h im to enter the house, police patrolman Joshua Danka found Emily in her bedroom. Danka arrested Emily and seized approximately fifty empty wax paper fold s, a glass smoking pipe, about thirty-five pills, and approximately thirty h ypodermic syringes, all left out in plain view. He did not look under the bed. Detective Sergeant Brian Smith testified at trial wax paper packets are a co mmon form of packaging for narcotics sold individually or on the street. According to Sheryl, the police took what drug para phernalia "they could see." After Emily's arrest, Sheryl cleaned E mily's bedroom, throwing out other wrappers and "[a]nything else [she] could find." Sheryl did not clean under Emily's bed, but she "moved the bed and clean ed around it." Following her arrest on May 19, 2017, Emily remained in jail for the next eight days. Kyle Potts, Emily's boyfriend, picked Emily up from jail on May 27, 2017, after another friend had posted her bail. Th ey eventually went to a party with Emily's parents at a friend's farm and then sp ent the night at Potts's house. Potts did not witness Emily consume any drugs at th e party or that night. According to data extracted from Emily's cell phon e, Emily texted defendant the next day at 4:22 a.m.: "Hey, it's Em ily. Sorry so early. Gotta sneak shit. Is J.R. still locked up? Text this nu mber now or Fa[c]ebook Emily Maser. I need shit." Emily next texted, "But I go t 40." Defendant responded,A- 3224

- 21 5 saying J.R. was "still locked up and no one knows w hen he's getting out." A few minutes later, defendant texted Emily: "If you got a ride out here, I'll serve you, but there's no way in hell I'm driving o ut to [Presidential Lakes] at 6 a.m. for $40." Emily texted her, "I need the D.," which according to Detective Smith meant "dope," a word used interchangeably wit h heroin. Emily asked defendant if she would "come serve [her]?" Through out the day, Emily repeatedly asked defendant to meet her, and defenda nt eventually agreed. Emily confirmed she had $40, provided her home addr ess, and asked defendant if she could "do eight"; defendant responded that s he could do "seven." At trial, defendant admitted she and Emily had been "texting back and forth all day" on May 28, 2017, and had agreed she would sell Emily seven bags of heroin for $40. After taking Emily to her friend's house so she could repay the bail money, Potts dropped Emily off at he r home at about 3:00 p.m. Defendant met Emily at about 6:00 p.m. at a park ne ar Emily's home to sell her the heroin. According to defendant, the bags of he roin she sold to Emily had a gecko stamp on them. Potts returned to Emily's house at around 7:00 p.m. After driving with Emily to a nearby Wawa convenience store to purchas e food, Potts returned Emily to her home and left at about 2:45 a.m. on Ma y 29, 2017. During their time together that night, he did not see Emily take drugs.A- 3224

- 21 6 Sometime after 6:00 p.m. on May 29, 2017, Sheryl re turned home. When she arrived, Emily was home alone, in her room . Sheryl saw Emily at about 11:00 p.m., when Emily came out of her room t o ask for a cigarette. That was the last time Sheryl saw Emily before find ing her in her bed the next morning. After she saw Emily's body, Sheryl called 9-1-1. O fficer Danka met Sheryl outside the house. Sheryl pointed to an ups tairs bedroom. Danka entered the house, went to the bedroom, and saw Emi ly's body. Paramedics, other patrolmen, and Detective Smith arrived on the scene. The paramedics confirmed Emily did not have a pulse. Smith found a Motorola cell phone in Emily's hand, an Apple iPhone on her windowsill, and an LG cell phone

– with Emily's name on the back

– atop her dresser. Sheryl confirmed she had seen her dau ghter use both the Motorola and LG cell phones. Detective Smith sent the Motor ola and LG to the Burlington County Prosecutor's Office High-Tech Cri mes Unit for data extraction. From the results of a subpoena issued to Verizon, Detective Smith determined that one number in Emily's contact list, labelled as both "J.R. Shannon" and "Shannon J.R.," belonged to defendant. Detective Smith found syringes on Emily's windowsil l. He also found a variety of wax paper folds scattered around Emily's room. He found one used,A- 3224

- 21 7 white, unstamped fold near Emily's arm; two used, w hite, unstamped folds underneath Emily's body; and four white, unstamped folds on a glass tray near her body. In a box underneath Emily's bed, he foun d several folds with a blue gecko stamp, a red Snapchat stamp, or "some sort of red mark" and several unstamped folds. Near Emily's dresser, he found on e fold with a green dragon stamp in a yellow basket and one fold with a "Grand Theft" blue stamp atop her dresser. Detective Smith did not send any of the wax paper f olds found underneath Emily's bed or near her dresser for test ing because they "didn't appear to contain any substance." In July 2017, he sent one of the white, unstamped folds found near Emily's body to National Medical Services (NMS), which tested it and found its contents posit ive for heroin, fentanyl, and quinine. Two years later, in September 2019, Detec tive Smith sent two more bags, also white, unstamped, and found near Emily's body; they tested positive for heroin, fentanyl, and trace amounts of quinine. Susan Crookham, a scientist employed by NMS, analyz ed results of tests NMS had performed on Emily's urine and confirmed it had contained nordiazepam, morphine, fentanyl, norfentanyl, opiat es, benzodiazepines, cannabinoids, and 6-monoacetylmorphine, which is in dicative of heroin use. Dr. Ian Hood, who was the county medical examiner, concluded Emily hadA- 3224

- 21 8 died from heroin and fentanyl toxicity likely withi n an hour from the time she was last seen alive on May 29, 2017. Dr. Hood test ified that it is "a very common scenario . . . where people have just gotten out of jail . . . lost their tolerance. That takes one to two weeks. And then they get out and they go and take the same old dose they were used to and th ey immediately die." On November 17, 2017, approximately five and one-ha lf months after Emily's death, Detective Smith conducted an interro gation of defendant at the police department. 3 Smith testified he had read defendant her Miranda r ights before she spoke with him. In fact, he had asked d efendant several questions before he advised her of her rights, including the following questions about her cell phone:

Det. Sgt. Smith: . . . How about a cell phone numb er for you? [Defendant]: (XXX) XXX- XXXX. Det. Sgt. Smith: What carrier is that? Sprint? M etro? T

– [Defendant]: . . . Verizon. Det. Sgt. Smith: Verizon? How long have you had that phone number? [Defendant]: Ever since I had a cell phone.

3 The State does not dispute the custodial nature of the interrogation.A- 3224

- 21 9 Det. Sgt. Smith: How long is that? [Defendant]: Years. Once he obtained that information from her, Detecti ve Smith advised defendant of her Miranda rights, and she agreed to waive them. Detective Smith told defendant he was "doing an investigation that goes all the way back 'til May" and questioned her about J.R. He initial ly said nothing about Emily. Defendant denied she had "ever helped J.R. facilita te his selling in order to get . . . free [heroin]" but admitted she had oc casionally provided car rides to him in exchange for drugs. When asked if she kn ew any of J.R.'s clients, defendant stated she "knew . . . some of them" and referenced a few by name, but not Emily. Detective Smith told defendant he d id not believe she was "being completely honest" and said he "kn[e]w a lot about" her. 4 Detective Smith told defendant he had "done a pretty thorough investigation" and had "gone through a lot of records . . . [and] through cell phones and stuff like that" and suggested they "need[ed] to open up . . . an avenue of honesty."

4 Before trial, defendant moved to redact this langua ge from the recording of the interrogation to be shown to the jury, arguing it prejudicially suggested Detective Smith had additional evidence regarding d efendant's drug dealing. The court granted the motion, and the detective's c omments about not believing defendant was "being completely honest" a nd that he "kn[e]w a lot about" her were redacted and not played for the jur y.A- 3224

- 21 10 Detective Smith eventually asked defendant, "Do you know a girl named Emily?" After the detective described Emily, defen dant responded, "I think I know who you're talking about." The detective aske d her, "[Do y]ou remember where she lives?" Defendant named two tow ns and said, "I know of her," indicating she knew Emily through J.R. She a dmitted she previously had communicated with Emily through text messages but s tated she had not been in touch with Emily in "[a] long time, because I ha ven't even been dealing with any of this stuff since May." She told the detecti ve she "had started on methadone" in May and "[o]nce [she] started at the clinic, [she] wasn't dealing with anything anymore." Detective Smith asked defendant, "[D]o you know wh at's up with Emily?" Defendant confirmed she had not talked to Emily since May. In response to the detective's direct question, defend ant denied she had ever sold anything to Emily. Detective Smith then read to he r language from some of their texts, told her that her "best bet" was to he lp him "figure out [her] involvement in this," and represented to her, "I'm not holding anything back. I'm not lying to you. I'm laying it all out . . . on the table and telling you what's up." Defendant then admitted she had sold h eroin to Emily approximately three times and stated the last time had been before May whenA- 3224

- 21 11 she "started at the clinic," but she also admitted selling J.R.'s heroin after he went to jail for "a couple of weeks after [she] sta rted at the methadone clinic." Detective Smith did not tell defendant Emily had di ed, and throughout the interrogation, he repeatedly used the present t ense when referencing her. In addition to the above questions he posed in the present tense, he asked defendant, "How old is Emily?" He asked defendant if she thought "she's in her 20s?" Before ending the interview, Detective S mith asked defendant, "Does [Emily] have a boyfriend?" In 2019, a grand jury returned an indictment chargi ng defendant with third-degree possession of a controlled dangerous s ubstance with the intent to distribute, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); firstdegree strict liability for a drug-induced death, i n violation of N.J.S.A. 2C:35- 9(a); third-degree distribution of a controlled dan gerous substance, in violation of N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); and th ird-degree possession of a controlled dangerous substance, in violation of N.J .S.A. 2C:35-10(a)(1). Before trial, the State moved to bar the testimony of defendant's witness, Lawrence J. Guzzardi, M.D., who purportedly was an expert in the fields of toxicology, drug use, and addiction. In his report , Dr. Guzzardi stated, among other things, that he found "it very unusual that [ Emily] could have obtained drugs of some nature from [defendant] on May 28, 20 18, and not used thoseA- 3224

- 21 12 drugs until after 11:30 p.m. on May 29, 2018," beca use "[t]he nature of opioid addiction is that the powerful attraction of the dr ug does not allow hoarding." Labelling Emily "an experienced chronic drug abuser ," he also opined "[a]n experienced chronic abuser of heroin would have uti lized [the amount of heroin defendant sold to Emily] quickly, likely wit hin hours of receipt" and "[d]rugs delivered on May 28, 2018, would not have been present in [Emily's] blood if she had utilized them as expected on that date." Dr. Guzzardi addressed the effects of fentanyl on the human body ; identified other potentially lethal substances for which NMS had not tested; and found "[w]ithout an examination of the internal organs, n o conclusion can be made as to what other factors contributed to [Emily's] deat h" and "[t]he level of opioids present may or may not have been the cause of her d eath." Dr. Guzzardi asserted in his report he had "worked with many, many substance abusers." His curriculum vitae (CV), how ever, did not provide any specific information about any recent work with "su bstance abusers." As set forth in his CV, Dr. Guzzardi completed a residency in emergency medicine in 1978 and the course work for a master's program in toxicology with a focus on tricyclic antidepressants in 1980. According to th e information provided in the CV, Dr. Guzzardi served as a hospital's "Director" of "Substance Abuse Service" from 1988 to 1993 while he worked as an at tending physician in thatA- 3224

- 21 13 hospital's emergency department from 1989 to 1998. Dr. Guzzardi served on specialty boards relating to family practice, emerg ency medicine, and medical toxicology. He held teaching positions, the last o ne in 1990, in emergency medicine. He gave a lecture on antidepressant over dose in April 1982, barbiturate poisoning in 1981, and "street drug" ab use in 1982. The State conceded Dr. Guzzardi was an expert in to xicology but challenged his asserted expertise in substance abus e. The State also argued Dr. Guzzardi had issued a net opinion, with insufficien t facts to support his conclusions. After hearing argument, the motion ju dge granted in part and denied in part the State's motion. The judge found Dr. Guzzardi's toxicology opinion "to be sufficiently supported by scientific specialized knowledge as required by the Rules of Evidence," but the doctor' s "background and knowledge . . . to be insufficient to support his o pinion in any aspect of drug use, abuse, addiction, and rehabilitation." The ju dge also found Dr. Guzzardi's opinions on Emily's inability to go days without drug use and the extent of her addiction to not be based on any facts, data, or pe rsonal interaction with Emily. Accordingly, the judge held Dr. Guzzardi co uld testify regarding toxicology but was prohibited from offering opinion testimony concerning drug use and addiction.A- 3224

- 21 14 Defendant did not move to suppress the recording of the interrogation based on any putative involuntariness of defendant' s waiver of her Miranda rights. The video recording of the interrogation w as played for the jury twice: once during the presentation of the State's case in chief and once after the jury had requested to see it again during deliberations. The jury found defendant guilty on all counts. Th e trial judge sentenced defendant to a twelve-year term of imprisonment, su bject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the drug-induce d-death conviction and concurrent to that sentence a four-year term of imp risonment on each of the other convictions, for an aggregate term of twelve years. This appeal followed. On appeal, defendant makes these arguments:

POINT I IT WAS PLAIN ERROR TO ADMIT DEFENDANT’S STATEMENT TO LAW ENFORCEMENT BECAUSE THE DETECTIVE DELIBERATELY HID THAT HE WASINVESTIGATING A STRICT LIABILITY DRUGINDUCED DEATH AND DECEIVED DEFENDANT ABOUT THE SERIOUSNESS OF THE INVESTIGATION, THUS MAKING HER MIRANDA WAIVER INVALID. (Not raised below.) A. Plain error is present because the deceptive police tactics used in the instant case are the same kind that were condemned by this court in [State v.]A- 3224

- 21 15 Diaz[, 470 N.J. Super. 495 (App. Div.), leave to appeal denied, 251 N.J. 8 (2022)]. B. Presumptively excluding a defendant’s statement under these circumstances would not offend the New Jersey Supreme Court’s guidance in [ State v.] Sims[, 250 N.J. 189, cert. denied, __ U.S. __, 143 S. Ct. 409, 214 (2022)] because of the unique character of the strict liability drug-induced death offense.
POINT II THE LEAD INVESTIGATOR IMPROPERLY ELICITED INCULPATORY INFORMATION FROM DEFENDANT WHEN HE ASKED ABOUT HER CELL PHONE NUMBER, PROVIDER, AND HISTORY BEFORE MIRANDA WARNINGS, REQUIRING SUPPRESSION OF THE UNMIRANDIZED STATEMENT. (Not raised below.)
POINT III THE TRIAL COURT ERRED BY EXCLUDING THE DEFENSE EXPERT AND ADMITTING THE STATE’S EXPERT TO OFFER OPINION TESTIMONY ON THE SAME TOPICS. Because it was plain error for the trial court to a dmit the recording of the interrogation without conducting a Rule 104 hearing to determine the voluntariness of defendant's statement and an abuse of discretion to limit her expert witness's testimony without conducting a hea ring regarding hisA- 3224

- 21 16 qualifications and the admissibility of his opinion s, we remand and direct the trial court to conduct the appropriate evidentiary hearings.
II. We review under the plain-error standard the admiss ion of defendant's statement into evidence because defendant did not a rgue before the trial court that her Miranda waiver was invalid or the admissio n of her statement had violated her Miranda rights. State v. Gonzalez, 249 N.J. 612, 633 (2022) (quoting State v. Singh, 245 N.J. 1, 13 (2021)); se e also Sims, 250 N.J. at 210 (reviewing the admission of the defendant's stateme nt to police under the plain-error standard when the defendant asserted fo r the first time on appeal that its admission had violated his Miranda rights) ; R. 2:10-2. "Under that standard, an unchallenged error constitutes plain e rror if it was 'clearly capable of producing an unjust result.'" State v. Clark, 2 51 N.J. 266, 287 (2022) (quoting R. 2:10 -2). "To determine whether an alleged error rises to the level of plain error, it 'must be evaluated in light of t he overall strength of the State's case.'" Ibid. (quoting State v. Sanchez-Medina, 23 1 N.J. 452, 468 (2018)). Our Supreme Court recently described the cornersto ne importance of an individual's right against self -incrimination.

"The privilege against self-incrimination, as set f orth in the Fifth Amendment to the United States Constitution, is one of the most important protecti ons of the criminal law." State v. Presha, 163 N.J. 30 4,A- 3224

- 21 17 312 (2000) (citing U.S. Const. amend. V; State v. Hartley, 103 N.J. 252, 262 (1986)). Although New Jersey has no constitutional provision addressing t he privilege against self-incrimination, our "common l awhas granted individuals the 'right against selfincrimination since colonial times.'" [State v.] Vincenty, 237 N.J. [122,] 132 [(2019)] (quoting [St ate v.] A.G.D., 178 N.J. [56,] 66 [( 2003 )]). Our law maintains "an unyielding commitment to ensure the proper admissibility of confessions." Ibid. (quoti ng State v. Reed, 133 N.J. 237, 252 (1993)). [Sims, 250 N.J. at 211.] The State, accordingly, bears "the burden to prove beyond a reasonable doubt that a suspect's waiver of his privilege agai nst self-incrimination prior to an inculpatory statement 'was knowing, intelligent, and voluntary in light of all the circumstances.'" Ibid. (quoting Presha, 163 N. J. at 313). In determining whether a defendant knowingly, voluntarily, and int elligently waived the right against self-incrimination, courts consider the tot ality of the circumstances. Ibid. ; see also State v. Nyhammer, 197 N.J. 383, 402-03 (2 009) ("In determining the voluntariness of a defendant's conf ession, we traditionally look to the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion." ); State v. Hahn, 473 N.J. Super. 349, 371 (App. Div. 2022) (affirming a decis ion to admit a defendant's statement rendered after the judge had considered t he evidence presented during a Rule 104 hearing and concluded based on a totality- of

- the

-A- 3224

- 21 18 circumstances analysis the defendant's statement wa s the product of free will and not police coercion), certif. denied, 252 N.J. 530 (2023). When assessing the totality of the circumstances, a trial court "s hould consider" evidence of "bad-faith conduct on the part of law enforcement o fficers." Sims, 250 N.J. at 216. The trial court in this case did not engage in any such consideration. We recognize neither party raised before the trial cou rt the issue of the admissibility of defendant's statement or the valid ity of her Miranda waiver. The State, which had a duty to prove the knowing an d voluntary nature of defendant's waiver, did not move to admit the state ment, and defendant did not move to exclude it. The trial court, nevertheless, had an obligation to conduct

a Rule 104 hearing to determine, based on the totalit y of the circumstances, whether defendant had knowingly, voluntarily, and i ntelligently waived her right against self-incrimination. See State v. Mil ler, 76 N.J. 392, 404- 05 (1978) (finding "[b]efore it can be admitted into e vidence and submitted to a jury, a defendant's confession must be proven by th e State to be voluntary beyond a reasonable doubt"); State v. Scott, 398 N. J. Super. 142, 153 (App. Div. 2006) (finding the "[v]oluntariness of a confe ssion or other inculpatory statement by an accused must always be established at a N.J.R.E. 104(c) hearing before it can be introduced into evidence a t trial") (quoting Biunno,A- 3224

- 21 19 Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 6 on N.J.R.E. 104 (2006)), aff'd o.b., 193 N.J. 227 (2008). That obligation becomes particularly clear when con sidering even the limited record before us. The record is devoid of any evidence defendant knew, before she waived her rights and admitted sel ling heroin to Emily, that Emily had died; it contains evidence Detective Smi th

– by initially focusing the interrogation on defendant's dealings with J.R. , expressly misrepresenting facts to defendant by telling her he was "not holdi ng anything back" and was "laying it all out . . . on the table," and repeate dly using the present tense when referencing Emily

– may have attempted to conceal Emily's death from defendant and mislead her into thinking she was ans wering questions about and confessing to a drug deal and not a strict liab ility drug-induced death. In fact, at trial, Detective Smith acknowledged he had not told defendant about Emily's death and testified that, as far as he knew , defendant had thought he was talking to her about her and J.R. selling drugs

. Whether Detective Smith's actions and omissions con stituted acceptable interrogation techniques that did not violate defen dant's rights or bad-faith conduct designed to induce defendant to make incrim inating statements she otherwise would not have made should have been exam ined by the trial court as part of a totality- of

- the -circumstances consideration following theA- 3224

- 21 20 development of a full record in a Rule 104 hearing. Cf. Sims, 250 N.J. at 200,
217 -18 (holding sufficient credible evidence in the re cord supported the trial court's finding, which was made after the court had conducted a Rule 104 hearing, that the totality of the circumstances war ranted the denial of the defendant's motion to suppress his statement to pol ice); Diaz, 470 N.J. Super. at 509 (finding, based on a record developed at a p lenary suppression hearing, interrogating detectives had executed a "planned in vestigative strategy to elicit incriminating statements linking defendant to the o verdose death before defendant became aware that someone had died"). In failing to conduct the Rule 104 hearing and to apply the totality- of

- the -circumstances test to determine the admissibility of defendant's statemen t, the trial court erred. And we conclude that error was plain error. As the Court found in State v. L.H., 239 N.J. 22, 2 7 (2019), "[n]o piece of evidence may have greater sway over a jury than a defendant's confession." Here, "the centrality of defendant’s incriminating statements" – in which she confessed to selling heroin to a person who subsequ ently died of a heroin and fentanyl overdose

– to the prosecution’s case cannot be reasonably deba ted. State v. O'Neill, 193 N.J. 148, 184 (2007). The tr ial court's failure to conduct

a Rule 104 hearing and failure to engage in a totalit y- of

- the -circumstances analysis concerning the admissibility of defendant' s statement was "clearlyA- 3224

- 21 21 capable of producing an unjust result," R. 2:10 -2, and, thus, constitutes plain

error. Defendant asks this court to create a rule prevent ing the State from using in a strict liability drug-induced death case the s tatement of a defendant who waived Miranda rights and admitted to selling drugs without being informed of the death of the victim or the potential strict-lia bility charges. We respectfully decline that request. See Sims, 250 N.J. at 211-12 ("Only in the most limited circumstances have we applied a per se rule to deci de whether a defendant knowingly and voluntarily waived Miranda rights" (quoting Nyhammer, 197 N.J. at 402-03)). Given the application of the tot ality- of

- the -circumstances test, which the Court reaffirmed in Sims, 250 N.J. at 217, we see no reason to establish a bright-line rule. Instead, we are satisfied the remedy here is to rem and the case with instructions the trial court engage in a totality- of

- the -circumstances analysis after first conducting a Rule 104 hearing

– the proper setting to develop the record regarding the State's ability or inability t o prove the voluntariness of defendant's statement. If the trial court on reman d finds the State failed to prove the voluntariness of defendant's statement be yond a reasonable doubt, defendant's convictions will be vacated and, if nec essary following vacatur of the convictions, the court shall conduct a new tria l at which defendant'sA- 3224

- 21 22 statement shall be excluded. See State v. Kelly, 6 1 N.J. 283, 294 (1972) (finding "the interests of justice will best be ser ved by . . . having the trial judge conduct the hearing on voluntariness" of the defendant's statement and, if State failed to prove voluntariness of statement , defendant was entitled to a new trial at which the statement would be excluded) ; State v. Stubbs, 433 N.J. Super. 273, 289 (App. Div. 2013) (remanding for a R ule 104 hearing regarding admissibility of defendant's purported adoptive adm ission and ordering a new trial if the State failed to meet its burden on adm issibility); Scott, 398 N.J. Super. at 153-54 (remanding for a "voluntariness he aring" regarding the defendant's statement and holding the defendant wou ld receive a new trial if the court on remand found his statement was not vol untary); State v. Marczak , 344 N.J. Super. 388, 398-99 (App. Div. 2001) (reman ding for a hearing on the voluntariness of the defendant's statements and dir ecting, if the State failed to prove the voluntariness of the statements, convicti on would be vacated and a new trial held in which the statements would be exc luded). Defendant also complains about some questions Detec tive Smith asked her before advising her of her rights under Miranda , specifically requests for her cell phone number, the name of the provider of her cell phone service, and how long she had had her cell phone and cell phone number. "[T]he term 'interrogation' under Miranda refers not only to ex press questioning, but also toA- 3224

- 21 23 any words or actions on the part of the police (oth er than those normally attendant to arrest and custody) that the police sh ould know are reasonably likely to elicit an incriminating response from the suspect." State v. Hubbard , 222 N.J. 249, 267 (2015) (quoting R.I. v. Innis, 44 6 U.S. 291, 301 (1980)). Police are not required to administer Miranda warni ngs before asking a defendant for "routine pedigree information, includ ing his name and address, for purposes of completing [an] arrest report." St ate v. Melendez, 454 N.J. Super. 445, 457 (App. Div. 2018). To determine whether a police officer's questions, posed before the officer administered the Miranda warnings, violated a defendant's rights, "we consider whether, under the circumstances, a police officer's questioning . . . was 'particularly evocative' or 'reasonably likely to elicit an incriminating response.'" State v. Tiwana, 256 N.J. 33, 42 (2023 ) (quoting R.I., 446 U.S. at 303). Although questions about a person's cell pho ne might generally be permissible as a routine request for pedigree infor mation, that is not what occurred here. The questions posed about defendant 's cell phone were clearly for the purpose of obtaining incriminating evidence tying defendant to the drug transactions

– negotiated over defendant's cell phone

– that the State argued resulted in the delivery of the drugs that killed t he victim. The detective violated defendant's rights by asking those questio ns before issuing theA- 3224

- 21 24 Miranda warnings, and the trial court erred in admi tting the questions and defendant's answers to them. But because of other evidence in the record, that e rror was not plain error requiring, on its own, a reversal or vacation of the conviction. Without referencing the information defendant provided in r esponse to the questions he had asked her before advising her of her Miranda ri ghts, Detective Smith testified at trial he had determined by way of a su bpoena issued to Verizon that the telephone number associated with the name "Shan non J.R." in Emily's Motorola cell phone

– the number Emily texted when she was seeking drugs on May 12, May 14, and May 28, 2017, and from which she received responsive texts

– belonged to defendant. A senior analyst from Veri zon Wireless also testified at trial and confirmed defe ndant was the subscriber for the number involved in the text exchange. "The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." State v. Cot to, 471 N.J. Super. 489, 531 (App. Div. 2022) (quoting Townsend v. Pierre, 221 N .J. 36, 52 (2015)), certif. denied, 252 N.J. 166 (2022). "Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion." Nicholas v. Hackensack Univ. Med. Ctr., 456 N.J. Super. 110, 11 7 (App. Div. 2018) (quoting Carey v. Lovett, 132 N.J. 44, 64 (1993)).A- 3224

- 21 25 N.J.R.E. 702 requires a witness to qualify as an ex pert by "knowledge, skill, experience, training, or education." State v. Olenowski, 255 N.J. 529, 583 n. 26 (2023) (quoting N.J.R.E. 702). An expert witness must "be suitably qualified and possessed of sufficient specialized k nowledge to be able to express [an expert opinion] and to explain the basi s of that opinion." Cotto , 471 N.J. Super. at 530 (quoting State v. Odom, 116 N.J. 65, 71 (1989)). However, the requirements for the admission of expe rt testimony admissibility "are construed liberally in light of [N.J.R.E.] 702 's tilt in favor of [] admissibility." Id. at 530 (quoting State v. Jenew icz, 193 N.J. 440, 454 (2008)). "[W]hile the trial judge must determine whether the expert's training and experience are sufficient to permit the expert to s tate an opinion, it remains the jury's function to determine the worth of that opin ion." State v. Canfield, 470 N.J. Super. 234, 327 (App. Div. 2022) (quoting Espi nal v. Arias, 391 N.J. Super. 49, 58 (App. Div. 2007)), aff'd as modified, 252 N.J. 497 (2023); see also Jenewicz, 193 N.J. at 455 ("[T]he strength of an individual's qualifications may be undermined through cross-examination" and sh ould not be used "as a reason to exclude a party's choice of expert witnes s to advance a claim or defense."). Lack of formal clinical training in a given area will not necessarily disqualify the expert from testifying if some other foundation for the expert'sA- 3224

- 21 26 opinion exists. Jenewicz, 193 N.J. at 455-56. "[A]n expert may be qualified by study without practice or practice without study [.]" State v. Smith, 21 N.J. 326, 334 (1956); see also Koseoglu v. Wry, 431 N.J. Super. 140, 159 (App. Div. 2013). "Deficiencies in the qualification of an expert is a matter to be weighed by the jury." Koseoglu, 431 N.J. Super. at 161 (quoting Espinal, 391 N.J. Super. at 59). "If a party challenges an expert opinion pursuant t o N.J.R.E. 702, the 'trial court should conduct a hearing under [N.J.R. E. 104] concerning the admissibility of the proposed expert testimony.'" State v. J.R., 227 N.J. 393, 409 (2017) (quoting State v. Torres, 183 N.J. 554, 567 (2005)). A hearing pursuant to N.J.R.E. 104 "is a favored means to cre ate a record for appellate review of a disputed decision." Ibid. (quoting Tor res, 183 N.J. at 554). At trial, expert witnesses may not testify as to th eir net opinions. N.J.R.E. 703. The net opinion rule "forbids the ad mission into evidence of an expert's conclusions that are not supported by fact ual evidence or other data." State v. Burney, 255 N.J. 1, 23 (2023) (quoting Tow nsend, 221 N.J. at 53-54). "Courts 'may not rely on expert testimony that lack s an appropriate factual foundation and fails to establish the existence of any standard about which the expert testified.'" In re Civil Commitment of A.Y. , 458 N.J. Super. 147, 169A- 3224

- 21 27 (App. Div. 2019) (quoting Davis v. Brickman Landsca ping, Ltd., 219 N.J. 395, 410 (2014) (internal quotation marks omitted)). The court erred in failing to conduct a Rule 104 h earing regarding Dr. Guzzardi's qualifications and the admissibility of his opinions and abused its discretion in barring in part his testimony. We re cognize the limited support in Dr. Guzzardi's CV for an expertise in drug abuse an d addiction. However, his experience as a director of a hospital's "Substance Abuse Service," albeit long ago, the lectures he gave regarding drug abuse and overdose, and his assertion he had "worked with many, many substance abusers" m erited, at a minimum, further exploration in a Rule 104 hearing and may h ave been sufficient, given the liberality with which we view the requirements of N.J.R.E. 702, to permit his testimony, leaving the jury to determine its wo rth. The Rule 104 hearing also would have provided the parties an opportunity to question Dr. Guzzardi regarding the bases for his conclusory statement th at Emily was "an experienced chronic drug abuser"

– a description that appears to be undisputed by anyone and supported by other evidence in the re cord

– and the opinions premised on that statement. In sum, we remand the case for a Rule 104 hearing on the voluntariness of defendant's statement to Detective Smith. If th e State does not prove beyond a reasonable doubt that the statement was vo luntary, the convictionsA- 3224

- 21 28 must be vacated and a new trial held, at which the statement will be excluded. The questions about defendant's cell phone, cell ph one carrier, and cell phone number Detective Smith asked defendant before readi ng her the Miranda rights and the answers she gave shall be excluded from any testimony and redacted from any recording played for a jury at a new trial . We also remand the case for a Rule 104 hearing regarding Dr. Guzzardi's qua lifications and the admissibility of his opinions. If the court on rem and finds Dr. Guzzardi is qualified to testify as an expert in the fields of drug use and addiction and finds that his opinions are admissible, the convict ions must be vacated and a new trial held, at which Dr. Guzzardi may testify a s an expert in toxicology, drug use, and addiction. If, on the other hand, th e court on remand determines defendant's statement was voluntary and Dr. Guzzard i was not qualified in those fields and his opinions are inadmissible, the convictions are affirmed, subject to defendant's right to seek review of the court's remand decisions through a separate appeal of the orders issued by t he trial court on remand. Remanded for proceedings consistent with this opini on. We do not retain jurisdiction.